Elizabeth Tillman-Cammon, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01990242 (E.E.O.C. Jul. 6, 2000)

01990242

07-06-2000

Elizabeth Tillman-Cammon, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Elizabeth Tillman-Cammon, )

Complainant, )

)

) Appeal No. 01990242

) Agency No. 4-C-442-0166-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency's September 4, 1998 decision

dismissing one of two claims raised in complainant'sn of the complaint on

the basis of failure to state a claim is proper pursuant to 64 Fed. Reg,

37,644, 37,656 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.107(a)(1)).<1>

The record shows that complainant filed a formal complaint alleging

that she had been discriminated against on the bases of race, and

reprisal when:

(1) on March 21, 1998, she was issued a letter informing her that

because she was on extended detail to the Fairlawn OH postal station

her electronic mail (e-mail) was suspended on the Akron District LAN

and that she should use the Fairlawn OH email address; and

(2) because of her detail to station and branch operations she was

denied the opportunity to attend a finance conference.

The agency issued a final decision dismissing claim (1) for failure to

state a claim. Claim (2) was accepted for investigation. Although

direct appeals of decisions partially dismissing a complaint are no

longer permissible under the regulations revised on November 9, 1999,

the agency has informed the Commission that claim (2) was the subject

of an agency decision on June 16, 1999. Therefore, we shall consider

the instant appeal because there are apparently no remaining claims from

the instant complaint pending anywhere in the administrative EEO process.

An agency shall accept a complaint from any aggrieved employee or

applicant who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April

21, 1994). "To state a claim under our regulations, an employee must

allege and show an injury in fact." Id. (citing Hackett v. McGuire Bros,

445 F.2d 447 (3d Cir. 1971)). "Specifically, an employee must allege and

show a `direct, personal deprivation at the hands of the employer,' that

is, a present and unresolved harm or loss affecting a term, condition

or privilege of his/her employment." Id. (citing Hammonds v. USPS, EEOC

Request No. 05900863 (October 31, 1990); Taylor v. USPS, EEOC Request

No. 05900367 (June 2, 1990)).

A review of the complaint persuades the Commission that complainant has

failed to show that she was aggrieved by being advised that her e-mail

had been suspended at one district and that she should utilize another

e-mail address. Accordingly, the dismissal of claim (1) is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

July 6, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________

_________________________________

DATE EQUAL EMPLOYMENT

ASSISTANT

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.